ECtHR case summary Nechiporuk and Yonkalo v. Ukraine (21/04/2011)

20.05.2011

While in detention he did not have access to a lawyer and he was tortured into confessing to the murder of a woman. The administrative detention lasted 3 days, at the end of which he was released and immediately re-arrested in the framework of criminal proceedings opened against him for the murder to which he had previously confessed to.

On the same day he withdrew his earlier confessions, stating that they had been extracted by force, but two days later made another confession after being beaten by police officers again. He subsequently repeated his confession in the presence of his lawyer. Court proceedings went up to the Supreme Court which upheld the lower court’s conviction of murder, referring mainly to his confessions during the pre-trial investigation.

Dealing with Mr Nechiporuk’s complaint under article 3, the ECtHR found that the applicant was subjected to torture, in violation of article 3. In reaching this conclusion the ECHR dismissed the claim that the applicant’s plausibility was undermined by his failure to make a complaint about his ill-treatment to the administration of the temporary detention facility where he was placed. The ECtHR commented that the applicant might have been discouraged from complaining to this institution by its structural link with the police. What mattered was that he had promptly brought the complaints to the attention of the prosecution authorities. With respect to the effectiveness of the investigation the ECHR stressed that the national authorities did not even attempt to clarify the circumstances in which the applicant was injured. This, together with the fact that the national courts disregarded documents and facts, led the ECtHR to conclude that Mr Nechiporuk had been denied an effective investigation into his complaint of ill-treatment by the police, in violation of article 3.

The Court also found that there had been violations of Mr Nechiporuk’s right to liberty and security under article 5 (1) in respect of his detention during five separate periods between 2004 and 2007. These violations were found on a series of grounds, such as: (a) the fact that Mr Nechiporuk’s initial apprehension was recorded by an invalid document and was not based on a reasonable suspicion; (b) while in detention for an administrative offence Mr Nechiporuk was treated as a criminal suspect and not afforded the corresponding procedural rights; (c) on two occasions Mr Nechiporuk was placed in detention in violation of national legislation; (d) national courts, on two occasions, disposed of his detention without giving any reasons for it or setting a time limit; (e) the national courts were found to have failed to advance any comprehensive reasoning to justify his deprivation of liberty; and (f) the ECtHR found that one of his periods of detention was not covered by any legal basis or clear rules.

The ECtHR also found a violation under article 5 (2) because Mr Nechiporuk was not informed of the charges against him during his initial administrative detention; he was merely told of a legal provision that was the ground for his arrest. Also, after this initial arrest the six day delay before Mr Nechiporuk was brought before a judge was seen to be a violation of article 5 (3). In violation of the same article was also the overall length of his pre-trial detention, lasting in total for one year and eight months.

There had also been a violation of article 5 (4) mainly because of the Ukrainian legislation’s lack of clear and foreseeable provisions regarding the procedure of judicial review of the accused’s detention during the trial stage. Also there had been a violation under article 5 (5) because domestic law did not provide for an enforceable right to compensation in his case.

Moreover, the ECtHR found a breach of the right not to incriminate oneself (in violation of article 6 (1)), because Mr Nechiporuk was tortured into confessing to a murder. Under the same provision the ECtHR found another violation because the national courts ignored some of Mr Nechiporuk’s highly relevant arguments.

Lastly the ECHR emphasized that depriving Mr Nechiporuk of access to a lawyer during the initial stages of the investigation, when the incriminating confessions were made, was in violation of article 6 (3) (c).